SZAOV v Minister for Immigration

[2004] FMCA 223

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAOV v MINISTER FOR IMMIGRATION [2004] FMCA 223

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Bhutan – RRT found that it was “not satisfied that the applicant was not a citizen of Nepal” – whether the RRT made any finding on nationality considered – the RRT had found, in effect, that the applicant was a national of Nepal but failed to consider whether that nationality was effective – the RRT also failed to consider the applicant’s fear of refoulement from Nepal to Bhutan – these were jurisdictional errors.

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601

Applicant: SZAOV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ809 of 2003

Delivered on: 8 April 2004

Delivered at: Sydney

Hearing date: 8 April 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr A Markus
Australian Government Solicitor

ORDERS

1. The Court declares that the decision of the Refugee Review Tribunal made on 21 July 1998 is invalid and of no effect.

2. A writ of certiorari shall issue, quashing the decisions of the Refugee Review Tribunal.

3. A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.

4. No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ809 of 2003

SZAOV

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision at the Refugee Review Tribunal (“the RRT”) made on 21 July 1998.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant asserted ethnic persecution in Bhutan.  He made claims that he fled Bhutan for Nepal and found refuge there before coming to Australia.

2. The relevant background facts and circumstances are set out in written submissions prepared on behalf of the Minister by Mr Markus.  I adopt paragraphs 1 through to paragraph 12 of those written submissions for the purposes of this judgment:

   The applicant arrived in Australia on a visitor visa on 10 September 1995.  On 18 January 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) [court book, pages 6-28].

   The applicant’s claims are set out in a submission made in support of his protection visa application [court book, pages 1-5], a submission made in support of his application for review to the RRT [court book, pages 45-46] and oral evidence given to the RRT on 11 June 1998.

   In summary, the applicant claimed to be an ethnic Nepalese born in Bhutan, who went with his family to Nepal as a refugee due to the political situation in Bhutan when he was about 14 years old. 

   The applicant claimed that when he and his family arrived in Nepal in 1992 they had lived in a refugee camp in the Jhapa region and that his parents remained at the camp where they were employed making garments. 

   The applicant claimed that his family cannot return to Bhutan, as Nepalese have no rights there and that in Nepal, refugees from Bhutan are not permitted to work for the government, their movements are limited, they have to tolerate camp conditions and the Nepalese wanted them to return home.

   On 4 February 1997, a delegate of the respondent wrote to the applicant noting information which may lead her to reject his claim [court book, page 35].  The delegate noted that if the applicant wished to comment on the information then he must provide any comments by 11 March 1997.  No comments were provided by the applicant. 

   On 15 March 1997, a delegate of the respondent made her decision, refusing to grant the applicant a protection visa [court book, pages 39‑44].

   On or about 7 April 1997, the applicant sought review of this decision by the RRT [court book, pages 50-53].

   With his application to the RRT, the applicant submitted copies of two documents [court book, pages 47-48]. The first, purporting to be written by the Chairman of the Beldangi Village Development Committee on 15 July 1996 stated that the applicant had arrived in Nepal in August 1993 and had stayed with his uncle in that village.  His uncle, who was prominent politically, had been able to assist the applicant in arranging his passport.  The second document was from the project coordinator of the Lutheran World Service Bhutanese Refugee Project in Damak, Jhapa also dated 15 July 1996.  This document stated that according to the records of the Jhapa refugee camp, the applicant arrived in Nepal in 1993.  Unhappy with camp conditions he had gone to live with his uncle outside the camp.  His uncle had claimed [Nepalese] citizenship for the applicant by stating that he was his son.

   The Tribunal made its decision on 21 July 1998, affirming the decision of the delegate not to grant the applicant a protection visa [court book, pages 76-81].  This decision was notified in writing to the applicant on 22 July 1998 [court book, page 82].

   On or around 10 September 1998 the applicant became a party to a proceeding S89 of 1999 in the High Court of Australia commenced by Ms Lie as representative of a number of plaintiffs including the applicant. 

   On 25 November 2002 Gaudron J made orders in relation to the disposal of the High Court Proceedings, both in relation to the named plaintiff and other represented parties.  In relation to the named parties Her Honour granted leave to individuals to commence proceedings seeking an order nisi in relation to their respective decisions of the Tribunal on or before 1 June 2003.   Her Honour ordered that upon the filing of such an application, the name of the applicant be deleted from the class of represented persons.  Otherwise, the proceedings were to stand dismissed from 30 May 2003.  These dates were varied by McHugh J on 23 May 2003 to allow application to be filed up to 20 June 2003.  The present applicant did not avail himself of that opportunity and accordingly, the High Court proceedings in relation to him were dismissed.

3. In paragraphs 13 to 15 of his written submissions, Mr Markus deals with the decision of the RRT.  I adopt paragraphs 13 and 14 of those written submissions:

   The RRT found that there were certain discrepancies between the applicant's evidence before the RRT the documentation he had submitted in support of his application.  The applicant had told the RRT that he had obtained his Nepalese passport through an agent with monies saved by his father.  However the documentation submitted by the applicant stated that the applicant's uncle, a prominent figure in local politics and a citizen of Nepal had arranged the passport by passing off the applicant as his own son.  The RRT also noted that on the applicant's own evidence, the name of his next of kin on his passport was that of his real father. 

   The RRT noted that the applicant had a Nepalese passport and had lived in Nepal for several years and much of that time, if not all, was spent outside refugee camps.

4. In paragraph 15 Mr Markus submits as follows:

   Ultimately the RRT found that on the evidence before it the applicant was a citizen of Nepal and as he had made no Convention-related claims against Nepal it was not satisfied that the applicant had a well-founded fear of persecution should he return to Nepal.

5. The findings and reasons of the RRT are very brief.  They are set out in two paragraphs on page 80 of the court book.  The presiding member said:

   There were certain discrepancies between the applicant's evidence before the Tribunal and the documentation he had submitted in support of his application.  These relate primarily to his account of how he obtained a Nepalese passport.  Before the Tribunal he said that this was obtained through an agent with monies saved by his father, although the documentation stated that it was arranged by his uncle, a prominent figure in local politics and apparently a citizen of Nepal, who had passed him off as his own son.  According to the applicant's own evidence, the name of his next of kin in his passport was that of his real father.  Further, the applicant stated that he had arrived in Nepal as a refugee at the age of fourteen, that is, around 1987, while the supporting documentation states that he arrived in Nepal in 1993.  However, the applicant has a Nepalese passport and has lived in Nepal for several years.  Much of that time, if not all, was spent outside refugee camps.  The applicant has made no Convention‑related claims against Nepal.  I am not satisfied that the applicant is not a citizen of Nepal. 

   On the evidence before me, I am not satisfied that the applicant has a well-founded fear of persecution should he return to Nepal.

6. In paragraphs 16 and 17 of his written submissions, Mr Markus deals with the content of the present application for judicial review.  I adopt those paragraphs:

   On 12 May 2003 the present proceedings were commenced in this Court.  The grounds relied upon by the applicant are as follows:

   (1)The submission (evidence) has not been looked at properly.

   (2)There was no evidence or material to justify the making of the decision.

   (3)The decision maker has not studied human rights violations and its consequences in Nepal.

   (4)The decision involved an error of law whether or not the error appears on the records at the time of the decision.

   (5)The decision was not made by reference to subject matter, scope and objects of the immigration act.

   (6)The translator was incorrect when translating information giving the RRT member the impression that I was lying which affected his view of me and so was bias in his decision (sic).”

   The application is unparticularised.  No amended application or affidavits have been filed by the applicant in accordance with directions made on 5 June 2003 and no submissions outlining the basis of the applicant’s challenge to the RRT’s decision have been received by the respondent. 

7. It is unfortunate that the applicant did not provide particulars of his asserted grounds of review.  Neither has he provided any evidence to support his claims of translation difficulties and bias.  There is, in my view, nothing before me that would enable me to accept ground 6 of the application.  I also reject grounds 2 and 3 as having no substance.

8. As I indicated at the outset of the hearing there is, in my view, only one or possibly two real issues.  The real issue is whether there was a constructive failure to exercise the jurisdiction of the RRT on the question of the applicant's nationality.  A secondary issue is whether the presiding member was correct in finding that the applicant had made no claims of persecution against Nepal.  Although not dealt with expressly in the application those issues, on a beneficial reading of the application, fairly arise from ground 4 and possibly ground 5.  Some support might also be drawn from ground 1.

9. The presiding member set out the terms of Article 1A(2) of the Convention on page 2 of her decision (court book, page 77).  The Convention defines a “refugee” as any person who:

   owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable, or owing to such fear, is unwilling to return to it.

10. It is apparent from the definition that the two limbs of it are mutually exclusive.  If nationality can be determined a decision maker must assess claims of persecution against that country.  It is only if nationality cannot be determined or if the applicant has no nationality that it is open to a decision maker to consider claims as against a country of former habitual residence.  The applicant claimed to be a national of Bhutan.  He asserted that while he was formerly an habitual resident of Nepal, he was not a Nepalese national.

11. The presiding member's consideration of this fundamental issue was brief.  Her use of the double negative in reaching a finding on the question of nationality is, to say the least, unhelpful.  I have some doubt whether the presiding member made any finding on nationality at all.  However, having considered her reasons as a whole, including the opening words of the decision on page 77 of the court book, I am prepared to find that although the decision is by no means clear, the presiding member intended to make a finding that the applicant is a national of Nepal.  He could also have been a national of Bhutan as he claimed.  There was nothing before the RRT to rule out the possibility of dual nationality.

12. Mr Markus submits, and I accept, that once having determined a nationality, the RRT is not bound to consider alternative nationalities.  However, in order to consider properly the issue of nationality, the RRT must consider whether effective nationality is held where that issue squarely arises.  In this case, the issue of effective nationality arose in two ways.  First, the applicant asserted that although he lived in Nepal, he had no work rights and was not entitled to the rights one normally associates with nationality.  In the circumstances, it was, in my view, necessary for the presiding member to consider whether the rights available to the applicant in Nepal would enable him to access protection there.

13. Secondly, the applicant had asserted a fear of refoulement from Nepal to Bhutan.  That claim needed to be considered.  It could have been considered in relation to the issue of effective nationality.  Alternatively, it could have been considered as a claim against Nepal.  To that extent, in my view, the presiding member was incorrect in finding that the applicant had made no claims of a well-founded fear of persecution in Nepal.  In my view, the presiding member overlooked a relevant consideration forming an integer or part of the claims of the applicant and, given that failure, there was a constructive failure to exercise the jurisdiction of the RRT. 

14. Mr Markus submits that even if I was to find jurisdictional error I should, in the exercise of discretion, withhold relief given the delay on the part of the applicant in bringing these proceedings.  The RRT decision was made on 21 July 1998, almost six years ago.  The issue raised by me at today's hearing could have been raised by the applicant at any time since then. 

15. As is noted by Mr Markus, in his written submissions, for most of the intervening period the applicant was engaged in a class action in the High Court associated with the High Court's decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601.

16. Ultimately, the application in the High Court by this applicant was abandoned.  The applicant may have been poorly advised in spending so much time on fruitless proceedings in the High Court.  The pursuit of those proceedings indicates, however, that the applicant was not sitting upon his rights.  He was seeking judicial review of the RRT decision, albeit not very effectively.

17. Mr Markus also drew attention to the fact that the proceedings in this Court were instituted some short time before the High Court proceedings lapsed.  Accordingly, the present proceedings might be regarded as an abuse of process.  I prefer to view this application as a somewhat more effective attempt by the applicant to exercise his rights of judicial review.  I also have regard to the fact that the decisions of this Court and the Federal Court are intended to have a normative effect on decision making in the RRT.  The decision of the RRT in this case stands in stark contrast to the careful consideration on issues of nationality in a number of other cases that I have considered recently.  It would, in my view, be wrong to deny this applicant relief in the exercise of discretion and I will not withhold that relief.

18. I will grant relief in the form of a declaration and orders in the nature of certiorari and mandamus.  

19. There will be no order as to costs.  The applicant is self represented and has not incurred any costs meriting an order.  I also take into account the fact that the applicant did not comply with directions for a particularised application and for the filing of evidence.  Further, although the application was broad enough to encompass the issue on which the case has been decided, that issue was ultimately one raised by the Court. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  19 April 2004